Estac L. Love ("Love") appeals his federal conviction and sentence on
fourteen counts of armed robbery, car-jacking and weapons charges. Applying
the minimum sentence authorized by statute and the United States Sentencing
Guidelines ("the guidelines"), the district court sentenced Love to 146 years in
prison. We find that Love is not entitled to relief from his conviction or sentence
based upon an alleged violation by the district court of Federal Rule of Criminal
Procedure 11(e)(1) because Love has not demonstrated that his substantial rights
were affected by the district court's statements. We also find that the large
disparity between Love's sentence and the sentences received by his two co-defendants does not
violate either the Due Process Clause or the Eighth
Amendment. Finally, we reject Love's arguments both that the district court
failed to submit all elements of the 18 U.S.C. § 924(c) weapons charges to the
jury in violation of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), and that the
Hobbs Act, 18 U.S.C. § 1951, is unconstitutional in light of United States v.
Morrison, 120 S. Ct. 1740 (2000). We therefore AFFIRM on all issues.

BACKGROUND

In 1999, the United States Attorney's Office ("the government") filed a
criminal complaint charging Love and Willie Cobb ("Cobb") with three criminal
counts: carjacking in violation of 18 U.S.C. § 2119, attempted robbery in
violation of 18 U.S.C. §§ 2, 1951, and possessing a firearm during the
commission of a crime of violence in violation of 18 U.S.C. § 2, 924(c). The
government later obtained a grand jury indictment expanding the charges brought
against Love and Cobb to include fourteen counts of criminal activity stemming
from a crime spree that Love, Cobb and a third man named Stacy Malone
("Malone") engaged in between December 1998 and January 1999. (Doc. 5,
Addendum Ex. No. 3.) Briefly, those crimes included: (1) Love's armed robbery
on December 18, 1998, of a Kentucky Fried Chicken restaurant,(1) during which he
forced seven employees onto the floor before stealing money and the surveillance
videotape (Vol. II at 8); (2) the robbery on December 21, 1998, by Love, Cobb
and Malone of a U.S. Express check cashing business, in which the men followed
an employee home, confronted her with a handgun, bound and gagged her son
and grandparents, and forced her to drive the three men to the store and to give
them money and the surveillance videotape (Vol. II at 8-9); (3) a botched,
attempted armed robbery by all three men of a Grandy's Restaurant on January 5,
1999 (Vol. II at 10); and (4) an aborted attempt by Love and Cobb to rob another
check cashing business on January 28, 1999 (Vol. II at 12). The last attempted
crime, in which Love and Cobb thought they would be assisted by another man,
who was actually a confidential informant working with the FBI, led to the arrest
of Love and Cobb. (Vol. II at 12). Malone was later arrested and eventually
charged for his role in the crime spree, as well.

Initially, Malone tried to negotiate a plea agreement in exchange for
cooperating with the government, but ultimately decided to go to trial instead.
He was convicted of seven of the charges contained in the indictment (Docs. 44
and 65), and sentenced to approximately 65 years in prison (Doc. 65 at 2; Vol. IV
at 9-10).

After extensive negotiations, Cobb entered into a Rule 11(e)(1)(C) plea
agreement requiring that he serve a 25-year sentence in exchange for pleading
guilty to one count of interfering with commerce by threats or violence, in
violation of 18 U.S.C. § 1951, and one count of brandishing a firearm during the
commission of the robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). (Docs.
14 (superceding indictment), 47 (stating that Cobb pled guilty to counts 4 and 5
in the superceding indictment)). The district court, Chief Judge Terry Kern
("Judge Kern"), presiding, accepted Cobb's plea agreement.(2) (Vol. VIII at 8.)

Love also negotiated with the government a Rule 11(e)(1)(C) plea
agreement that included a 38-year cap on his sentencing exposure. (Vol. VI at 6.)
After reviewing Love's pre-sentence investigation report, however, Judge Kern
refused to accept the plea agreement. (Id.) Judge Kern noted that Love was
apparently the ringleader of the group, that the three men had forced their way
into a family's home, and that they had tied up the family and forced one woman
to cooperate in the U.S. Express robbery at gunpoint. Further, noted Judge Kern,
Love's extensive criminal history, which included charges of assault and battery,
marijuana possession, larceny, incitement to riot, and possession of a firearm
after a criminal conviction, placed him in criminal history Category V under the
guidelines. (Id. at 5.) Judge Kern then commented:

The minimum under the guidelines, not for all of the crimes that
were committed, but just for those that the government has allowed
this defendant to plead guilty to, is 46 years. And I see no
justification for anything other than a guideline sentence in this case.

. . . I've indicated what I think about 11(e)(1)(C).[(3)] So if you
happen to get [a plea agreement] that corresponds with what I think
the sentence ought to be, why, I won't reject it.

(Id. at 6-7.) Judge Kern then scheduled a two-week recess to allow Love to
assess his options now that the 38-year plea agreement had been rejected, and to
allow the government and Love a chance to negotiate another plea agreement.

Love's counsel on appeal states that Love was "devastated" by Judge
Kern's rejection of the 38-year plea agreement and believed that, with an
anticipated Rule 11(e)(1)(C) plea agreement sentence of approximately 46 years,
he would have the equivalent of a life sentence without possibility of parole
regardless of whether he pled guilty or went to trial. (Aplt. Br. at 16.) He thus
refused to authorize his attorney to continue plea negotiations and insisted on
going to trial. (Id.)

Before Love's trial commenced, the case was transferred to Judge Thomas
Brett (seegenerally Vol. XIII), and Love moved the court for reconsideration
of
the original plea agreement, (Vol. XIII at 5). Judge Brett rejected Love's
argument that Judge Kern had improperly refused to accept the 38-year plea
agreement negotiated by Love and the government, finding that Judge Kern's
decision was "reasonable under the circumstances." (Vol. XIII at 22.)

The jury convicted Love of all fourteen counts contained in the indictment.
At the sentencing hearing, Love's counsel objected to a proposed guideline
sentence of 1,752 months (Vol. XIV at 5), in part because he believed Judge
Kern "invalidated the sentencing process" by suggesting to Love and the
government a sentence that would satisfy the court.(4) (Vol. XIV at 4, 31-33.)
Judge Brett, although expressing his concern with the result (id. at 29), stated "I
just haven't got any discretion" in regard to sentencing because the crimes of
which Love was convicted carried mandatory minimum, consecutive sentences
totaling 1,752 months, or 146 years (id. at 23-26). Accordingly, Judge Brett
sentenced Love to the minimum sentence available given his guideline range, 146
years in prison. (Tr. Vol. XIV at 50.)

DISCUSSION

The district court had jurisdiction over Love's case pursuant to 18 U.S.C.
§ 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).

A. Alleged Rule 11 Violation

Rule 11(e)(1) of the Federal Rules of Criminal Procedure states: "The
court shall not participate in any discussions between the parties concerning any
. . . plea agreement." Rule 11(e)(2) allows a district court presented with a Rule
11(e)(1)(C) plea agreement specifying the length of time the defendant will serve
to defer a decision whether to accept the agreement until after "there has been an
opportunity to consider the presentence report." If the court then decides to
reject the plea agreement, Rule 11(e)(4) instructs the court to "inform the parties
of this fact, advise the defendant personally in open court or, on a showing of
good cause, in camera, that the court is not bound by the plea agreement, [and]
afford the defendant the opportunity to then withdraw the plea . . . ." Love
argues that Judge Kerns' remarks when rejecting the 38-year plea agreement
pursuant to Rule 11(e)(2) and Rule 11(e)(4) violated Rule 11(e)(1)'s requirement
that the "court shall not participate" in plea negotiations, and that we should
therefore vacate his sentence and remand for a new trial. We disagree.

"Rule 11(e)(1) prohibits absolutely a district court from all forms of
judicial participation in or interference with the plea negotiation process."
United States v. Miles, 10 F.3d 1135, 1139 (5th Cir. 1993) (quotation marks
omitted). An alleged deviation from the requirements of Rule 11(e) will not,
however, mandate vacatur of the defendant's conviction or sentence in all cases.
See Fed. R. Crim. P. 11(h) ("Any variance from the procedures required by this
rule which does not affect substantial rights shall be disregarded.") Where a
defendant has pled guilty after improper participation in the plea negotiation
process by the district court, he generally has the right to ask an appellate court
to vacate his plea and to either go to trial or reenter negotiations with the
prosecuting authority. See, e.g., United States v. Bruce, 976 F.2d 552, 558-59
(9th Cir. 1992). This is because "[t]he primary purpose of Rule 11(e)(1) is to
avoid the danger of an involuntary guilty plea coerced by judicial intervention."
United States v. Diaz, 138 F.3d 1359, 1363 (11th Cir. 1998). Where a defendant
alleging a violation of Rule 11(e)(1) chose not to plead guilty but instead to
proceed to trial, however, an appellate court "conduct[s] a straightforward, two-question
'harmless error' analysis: (1) Did the sentencing court in fact vary from
the procedures required by Rule 11, and (2) if so, did such variance affect
substantial rights of the defendant." United States v. Crowell, 60 F.3d 199, 204
(5th Cir. 1995) (quotation marks and citations omitted); see alsoDiaz, 138 F.3d
at 1363 (finding that the district court violated Rule 11(e)(1) but that the
defendant, who was later convicted at trial, had not demonstrated that the court's
improper comments compromised her neutrality or otherwise prejudiced the
defendant, and thus that the defendant was entitled to no relief).

In this case, it is not necessary to decide whether Judge Kern's remarks
constituted a violation of Rule 11(e)(1) because Love has made no showing that
the alleged violation affected his substantial rights. This is not a case in which
Love accepted a guilty plea that was produced through negotiations with a judge,
cf.Miles, 10 F.3d at 1140 (defendant who accepts guilty plea that judge helped
negotiate is entitled to have conviction vacated and case remanded for trial), and
Love does not argue that the alleged Rule 11(e)(1) error infected the trial or post-conviction
sentencing hearing, cf.Diaz, 138 F.3d at 1363 ("Significantly, he does
not present any errors in his appeal regarding his trial, nor does he claim that his
guilt was not clearly determined. Consequently, a new trial is unwarranted.");
Crowell, 60 F.3d at 205 ("Since Crowell ultimately entered a plea of not guilty,
and since there is no indication in the record that Crowell did not receive a fair
trial, we have no problem finding that the court's violation of Rule 11 was
harmless with regard to Crowell's conviction."). While a district court's
suggestion of an appropriate sentence may warrant relief if the statement gave
rise to the appearance of partiality, seeCrowell, 60 F.3d at 205, Love's case
was
transferred to a different judge for trial and sentencing. Nothing in the facts
before us suggests that Judge Brett prejudged the case, entered into an
adversarial relationship with Love, or otherwise coerced him to accept liability.
Cf.Bruce, 976 F.2d at 556-58 (9th Cir. 1992) (considering the policies
behind
Rule 11(e)(1): (1) ensuring parties are not coerced into pleas because of judicial
pressure; (2) preventing defendants from viewing the judge as an adversary
instead of a neutral arbitrator; and (3) protecting judges' objectivity by
precluding them from advocating for any specific outcome). We find that the
transfer of Love's case to a different district court judge for trial and sentencing
purged the proceedings of any possible taint from Judge Kern's allegedly
improper remarks. Cf.United States v. Adams, 634 F.2d 830, 842 (5th Cir.
1981) ("[A] defendant who has pled not guilty after unsuccessful plea
discussions in which the judge has participated, but who makes no showing of
actual prejudice as a result of the judge's participation, should not receive a new
trial but should be resentenced before a different judge.").

Finally, we reject Love's argument that the feeling of hopelessness that
overtook him as a result of Judge Kern's remarks constitutes a deprivation of
substantial rights. The original plea agreement between the government and
Love contemplated a sentence of 38 years' imprisonment. The sentence Love
might have received had he continued negotiations with the government after the
initial plea agreement was rejected, 45 years' imprisonment (Vol. XIV at 47), was
approximately eight years longer than the original, agreed-upon sentence. While
Love now asserts that he was incapacitated from engaging in further negotiations
due to this 8-year difference, we do not think his claimed incapacitation rises to
the level of a deprivation of Love's substantial rights. In any event, Love
himself declined to accept a second 11(e)(1)(C) plea agreement involving a
sentence of approximately 45 years and chose instead to go to trial. The fact that
Love now regrets that decision is insufficient to implicate his substantial rights.

Accordingly, we hold that Love is not entitled to relief because his
substantial rights were not affected by any alleged violation of Rule 11(e)(1).

B. Constitutional Claims

Love next argues that the disparity between the sentences imposed upon
him and his accomplices violates principles of fundamental fairness and due
process, as well as the Eighth Amendment's prohibition of cruel and unusual
punishment. We find these arguments unconvincing.

A jury convicted Love on all fourteen counts of the indictment, many of
which involved violent crimes. Nonetheless, the overwhelming majority of the
146-year sentence Love later received arose under 18 U.S.C. § 924(c), which
creates mandatory minimum sentences for offenders who employ a firearm or
other deadly weapon during the commission of a drug trafficking crime or a
crime of violence. Specifically, § 924(c) imposes a five-year mandatory
minimum for the first violation, and mandatory consecutive sentences of 25 years
for each violation thereafter. See 18 U.S.C. § 924(c)(1)(C); Deal v.
United
States, 508 U.S. 129, 131-37 (1993) (finding that
§ 924(c)(1)(C)'s sentencing
enhancement for "second or subsequent conviction[s]" can be applied in cases
where the judgments of conviction are all entered at the same time).
Furthermore, Love's past criminal acts were substantial enough to warrant a
criminal history category of V under the guidelines, the second highest possible
criminal history classification. (Aplt.Br. at 35.)

In contrast, Love's accomplice Cobb pleaded guilty to one count under 18
U.S.C. § 1951 and one count under § 924(c), and was sentenced to a term of 25
years. (Vol. VIII at 13-14.) Unlike Love, Cobb had no criminal history and there
was no evidence Cobb carried a gun during the crimes.(5) Further, the evidence
showed that Cobb was a "follower" rather than a "leader" when committing the
charged offenses and that he had shown compassion for one of his victims. (Vol.
VIII at 3-8.)

The third participant in the crimes, Malone, ceased his plea negotiation
efforts and went to trial. He was convicted on seven counts, including three
counts under § 924(c). (Doc. 44.) The court sentenced him to 65 years in prison,
the minimum sentence available under the statutes and guidelines. (Doc. 65 at
2.)

We have previously held that a criminal defendant alleging a disparity
between his sentence and the sentence of a co-defendant is not entitled to relief
from a sentence that is properly within the sentencing guidelines and statutory
requirements. See, e.g., United States v. Blackwell, 127 F.3d 947, 951-52
(10th
Cir. 1997) (stating that the guidelines are intended to equalize sentences on a
national level and that disparities among individual co-defendants are not
grounds for a downward departure). This has been held to be the case both
where the defendant alleges an Eighth Amendment violation due to the disparity,
United States v. Youngpeter, 986 F.2d 349, 355-56 (10th Cir. 1993), and where
the defendant alleges a due process or equal protection violation based upon the
disparity, United States v. Trujillo, 906 F.2d 1456, 1465 (10th Cir. 1990). In
Blackwell, we noted that this holding is in accord with cases in every other
federal appellate circuit. See 127 F.3d at 951-52 (citing collected cases from
other circuits holding that "disparity between sentences of co-defendants . . . is
not a proper basis for sentence reduction beyond the guidelines minimum").

Love asks us to depart from the above cases based upon the magnitude of
the difference between his sentence and the sentences of his co-defendants, and
correctly notes that none of the cases cited above deal with disparities of a scale
similar to this case.

We reject Love's request that we depart from this court's precedent. As an
initial matter, we note that each defendant in this case was sentenced for different
crimes. Love had a significantly greater criminal history than the others, and
Cobb assisted the government while Love and Malone insisted on going to trial.
Under these circumstances, disparate sentences were not only permissible, they
were required by the guidelines because none of the defendants were similarly
situated with the other defendants. As we stated in Youngpeter, 986 F.2d at 356,
"When two or more defendants are convicted of the same crime a sentencing
difference may be expected as the [s]entencing [g]uidelines dictate a sentence
based upon each defendant's conduct and criminal history. Sentencing
differences due to individual conduct as considered by [the guidelines] do not
make a sentence disproportionate." See alsoTrujillo, 906 F.2d at 1565.

Moreover, none of the cases to which Love refers suggest that the outcome
of the case depended on the size of the disparities involved. To the contrary, the
cases simply reject disparity in sentence length as a basis for relief, and instead
address only whether the sentence is proportional to each defendant's culpability
for the crime. Again, in Youngpeter we observed:

Disparity of a codefendant's sentence comes within a request for
proportionality review. The Eighth Amendment requires that a
sentence not be disproportionate to the severity of the crime or
involve unnecessary infliction of pain. Within this limitation, the
determination of the proper penalty is a matter for the legislature. If
the imposed sentence is within the statutory limits, . . . an appellate
court generally will not regard it as cruel and unusual punishment.

Id. (quotation marks and citations omitted).

Love does not contend that the district court erred in applying the
guidelines to his conviction or, for that matter, to either of his co-defendants'
convictions. Therefore, he must show that his 146-year sentence is
disproportionate to the severity of his crimes or that it involves unnecessary
infliction of pain, without regard to the sentences handed down against Cobb and
Malone. Love did not raise this issue on appeal, and accordingly we do not
address it in this opinion.

We find that the sentencing disparity between Love and his co-defendants
does not violate Love's rights of due process, equal protection, or to be free of
cruel and unusual punishment.

Apprendi

Love also contends that his sentence violated due process pursuant to the
Supreme Court of the United States' holding in Apprendi v. New Jersey, 120
S.Ct. 2348, 2355, 2362-63 (2000). In Apprendi, the Court held: "Other than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Id. at 2262-63. Love acknowledges that this issue
was not raised before the trial court, but we have stated that this court may
review alleged Apprendi violations for plain error on appeal. SeeUnited States v.
Keeling, 235 F.3d 533, 538-40 (10th Cir. 2000) (applying plain error analysis to
Apprendi challenge raised for the first time on appeal).

The gravamen of Love's argument is that the court did not submit all the
elements required for a conviction under § 924(c) to the jury. Section 924(c)
requires the government to prove that (1) during and in relation to (2) a crime of
violence or drug trafficking crime (3) for which the defendant may properly be
prosecuted in federal court (4) the defendant used or carried a firearm, or (5)
possessed a firearm in furtherance of that crime. In this case, Love argues that
"the question of possession, or in fact, all of the elements of the 924(c) charges,
which greatly increased the defendant's sentence, were not submitted to the jury
and hence [were not] proven beyond a reasonable doubt." (Aplt.Br. at 44.)

Love does not elaborate on this contention, and it does not find support in
the record. The jury instructions read:

You are instructed that Title 18, United States Code, section
924(c)(1) provides in pertinent part:

Any person who, during and in relation to any crime of
violence . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm . . .

Shall be guilty of an offense against the United States

. . .

In order to sustain its burden of proof for the crime of using or
carrying a firearm during and in relation to a crime of
violence . . . the government must prove the following essential
elements beyond a reasonable doubt:

. . .

During and in relation to the commission of the crime
set forth in the count, the defendant knowingly used or
carried a firearm, or that the defendant possessed a
firearm in furtherance of that crime.

(Aplt.App. at Addendum 13.) Further, the jury instructions set forth an
extensive and detailed definition of the meaning of "possession" to which Love's
counsel apparently did not object at trial. (Id.)

Accordingly, we find the jury instructions properly placed the burden of
proof for each element on the government, and therefore find Love's Apprendi
challenge meritless.

Hobbs Act

Finally, Love argues that the Supreme Court's recent holding in United
States v. Morrison, 120 S.Ct. 1740 (2000), requires a finding that Congress's
enactment of the Hobbs Act, 18 U.S.C. § 1951, exceeded Congress' powers
under the Commerce Clause. Specifically, Love argues that the Court's holding
in Morrison, 120 S.Ct. at 1751, i.e., that Congress' enactment of the Violence
Against Women Act ("VAWA") was unconstitutional because the Commerce
Clause does not give Congress authority to regulate purely non-economic
criminal behavior, mandates a finding that the Hobbs Act is similarly
unconstitutional.

Whoever in any way or degree obstructs, delays, or affects commerce
or the movement of any article or commodity in commerce, by
robbery or extortion or attempts or conspires so to do, or commits or
threatens physical violence to any person or property in furtherance
of a plan or purpose to do anything in violation of this section shall
be fined under this title or imprisoned not more than twenty years, or
both.

18 U.S.C. § 1951(a). In Stirone, the Supreme Court held that the broad
jurisdictional language of § 1951, which regulates crimes "affect[ing] commerce
or the movement of any article or commodity in commerce," manifests "a purpose
to use all the constitutional power Congress has to punish interference with
interstate commerce by extortion, robbery or physical violence." 361 U.S. at 215.
In other words, the jurisdictional element of § 1951, "affect[ing] commerce,"
itself limits the scope of the Hobbs Act to crimes falling within Congress'
Commerce Clause power. See also 18 U.S.C. § 1951(b)(3) (defining
"commerce"
for purposes of the Hobbs Act).

In Malone, where we were asked to review the Hobbs Act convictions of
Love's co-defendant Malone, we considered the effect of Morrison on the
constitutionality of § 1951. Seeid. at 1294-95. Malone argued
that the impact
of the three men's crimes on interstate commerce was insufficient to satisfy
§ 1951's jurisdictional element because Morrison required a "showing of a
substantial effect on interstate commerce." Id. at 1294. In rejecting Malone's
challenge, we stated:

Unlike the statutes at issue in Morrison and Lopez, the Hobbs
Act
regulates economic activity. Furthermore, the Hobbs Act contains an
explicit and expansive jurisdictional element establishing that it is in
pursuance of Congress' power to regulate interstate commerce.
Thus, we do not believe Morrison impacts our prior decisions
discussing the jurisdictional element of the Hobbs Act.

Id. (citations omitted). Although Malone's argument arose in a slightly different
context, our holding in Malone makes clear that, despite the Supreme Court's
holding in Morrison, criminal activity having a direct, albeit de minimis, effect
on economic activity meets the jurisdictional threshold of § 1951(a). Given our
holding in Malone that the Hobbs Act was constitutional as applied to Love's
co-defendant, it would be difficult if not impossible for this panel to conclude that
the Hobbs Act is unconstitutional on its face as applied in this case.

Unlike the statute at issue in Morrison, the Hobbs Act plainly and
undeniably regulates economic activity. Robbery, even though
accompanied by actual or threatened physical harm, is undeniably an
economic crime that involves the involuntary transfer of
economically valuable assets. The relationship between robbery and
commerce is clear, direct, and unattenuated.

Id. at *5 (citations omitted). The Hobbs Act is intended to regulate behavior that
directly affects interstate commerce. Accordingly, the Morrison Court's analysis
of VAWA, a statute directed at regulating activity that is unquestionably non-economic in nature,
is wholly inapposite to the case at bar.

For these reasons, we reject Love's argument that the Hobbs Act represents
an unconstitutional exercise of Congress' Commerce Clause powers.

CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the district court.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge

FOOTNOTESClick footnote number to return to corresponding location in the text.

*. This order and judgment is not binding
precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. During Cobb's sentencing hearing, Cobb's
counsel informed the district
court that Cobb was also present during the robbery of the Kentucky Fried
Chicken, a fact of which the government was unaware before Cobb's plea
agreement proffer. (Vol. VIII at 6.)

2. The district court previously had rejected
a plea agreement between Cobb
and the government pursuant to which Cobb would have received 22 years'
imprisonment, stating "I don't think it's off terribly. . . . But that many armed
robberies, involvement, potential involvement in that many armed robberies and
two carjackings, it seems to me is, particularly in view of the sentencing results
that are anticipated in the other two cases, to be too lenient. . . . [I]t's my feeling
that the appropriate sentence is somewhere between 25 to 30 years for Mr. Cobb's
involvement in the instant offense . . . ." (Vol. V at 4.)

Now, perhaps there's some explanation that might be helpful,
certainly to the government with regard to these 11(e)(1)(C)
[agreements]. I know that there are some judges that won't accept
them under any circumstances, and I don't subscribe to that theory. I
do agree that, generally, sentencing and decisions regarding
punishment are best left to the Court. And neither the U.S.
Attorney's Office, nor the [C]ongress, through the sentencing
guidelines, should attempt to control criminal sentencing.

. . .

There are occasions when I think it is appropriate to use an
11(e)(1)(C) . . .

. . .

I think there are occasions when the guidelines are too harsh. I
think there are occasions when there are mandatory sentences that are
too punitive. And there are times when the characteristics of the
offender in the crime cry for some relief. Those times, to my mind,
involve first offenders.

. . .

So I think there are times when the chances of rehabilitation
are good, or perhaps drug treatment might lead to restoration of a
person to a normal law-abiding status. And there are times when I
think the guidelines do not allow the courts much leeway. And in
those instances, if the United States Attorney wants to use an
11(e)(1)(C), I have no objection to that.

(Vol. VI at 3-4.)

4. In connection with this argument, Love's
counsel also argued that Love
was entitled to a 38-year sentence (Vol. XIV at 40 ("Well, what I've asked for is
a 38-year sentence, Your Honor, back to the original deal.")), an idea Judge Brett
squarely rejected, finding that a sentence of only 38 years was not "fair" given
Love's level of involvement in the crimes charged (Vol. XIV at 40-41).

5. Although Cobb pled guilty to one count
of brandishing a firearm during
the commission of a robbery, seesupra p. 3, the evidence indicated that he had
not actually carried the firearm and instead only aided and abetted Love's use of a
firearm.